Does providing a general character reference amount to apparent bias?Print publication
In this fifth adjudication between the parties, Matthew J Harding (Harding) sought to avoid enforcement of an Adjudicator’s decision on (amongst other things) the grounds of apparent bias from the Adjudicator.
In the previous fourth adjudication between the parties Mr Paice and Ms Springall (Paice) had obtained an adjudicator’s decision in their favour. Harding also challenged enforcement of this decision on the grounds of apparent bias. The TCC agreed with Harding, and declined to enforce the Fourth Adjudicator’s decision. Following the TCC’s ruling, Harding made a formal complaint to the RICS regarding the Fourth Adjudicator.
The Adjudicator in this fifth adjudication (the Fifth Adjudicator) had provided a character reference to the RICS regarding the Fourth Adjudicator following Harding’s formal complaint. The Fifth Adjudicator did not disclose to the parties that he had provided such a character reference until Harding directly asked the Fifth Adjudicator about this. Harding argued that this amounted to apparent bias and that the Fifth Adjudicator’s decision here should not be enforced.
The TCC confirmed that the test for apparent bias is whether the defendant has a real prospect of establishing that a fair minded observer would conclude that there was a real possibility that the tribunal was biased. It is irrelevant whether the parties themselves think there is a real possibility of bias. The relevant viewpoint is a fair minded observer.
The TCC concluded that the Fifth Adjudicator did not have an obligation to disclose to the parties the fact that he provided a general character reference for the Fourth Adjudicator to the RICS. The fifth adjudication was a fresh dispute and was not a review of the Fourth Adjudicator’s previous decision. Further Harding had not raised the issue of the character reference with the Fifth Adjudicator until 2 days before his decision was due. Harding’s representatives knew of the existence of this character reference from before the commencement of the fifth adjudication. The TCC considered that if the character reference was of such significant as Harding now suggested in the enforcement proceedings, then Harding would have raised this at the time of the Fifth Adjudicator being appointed.
The TCC accepted that Harding was sensitive to the issue of bias, given the outcome of the Fourth Adjudication, however a fair minded observer would not conclude that there was an appearance of bias from the provision of a general character reference.